Kancharla Durga Prasad vs Union Of India
2024 Latest Caselaw 673 Tel

Telangana High Court

Kancharla Durga Prasad vs Union Of India on 19 February, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

        HON'BLE MRS JUSTICE SUREPALLI NANDA


              WRIT PETITION No.2045 of 2024

ORDER:

Heard learned counsel appearing on behalf of the

petitioner and also heard learned Counsel representing

Mr.Gadi Praveen Kumar, Dy. Solicitor General of India,

appearing on behalf of respondent Nos.1 and 2.

PERUSED THE RECORD.

2. The petitioner approached the Court seeking the

prayer as follows:

"to issue appropriate Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd Respondent in detaining my renewed passport bearing No. Z4193868 dt. 18.05.2017 vide surrender certificate dt. 08.05.2023 on the premise of receiving adverse inputs from the police as highly illegal, arbitrary and violation of Article 21 of Constitution of India and consequently direct the 2nd Respondent to release and return the said passport forthwith and pass such other order or orders as this Hon'ble Court may deem fit and necessary in the interest of justice and circumstances of the case."

3. The specific case of the petitioner is that, petitioner made

an application for renewal of the passport on 16.05.2017 by

duly furnishing all the relevant information that was asked in

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the passport renewal application form. Considering the

renewal application of the petitioner, the respondent No.2

issued a passport bearing No.Z419368, dated 18.05.2017 to

the petitioner herein which is valid up to 17.05.2027. The

specific grievance of the petitioner is that, 2nd

respondent/Regional Passport Office has issued show cause

notice vide letter Ref. No.SCN/313966501/22, dated

23.12.2022 to the petitioner seeking to furnish certain

clarifications regarding issuance of passport facilities to

Master Durga Prasad Kancherla, who is the petitioner herein.

The petitioner further averred that, in response to the said

show cause notice dated 23.12.2022 issued by the 2nd

respondent/Regional Passport Office, the petitioner furnished

clarifications vide his detailed representation, dated

20.01.2023 to the 2nd respondent herein. But however,

without considering the said explanation submitted by the

petitioner on 20.01.2023, the Regional Passport Office has

issued Surrender Certificate calling upon the petitioner to

surrender the passport to the Regional Passport Officer and

the official reason recorded for surrender of passport is

"Surrender of Passport due to adverse inputs received from

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the Police." The petitioner herein had surrendered the

passport on 08.05.2023 and the Regional Passport Authority

also issued an acknowledgment of the receipt of passport by

issuing 'surrender certificate.' The petitioner aggrieved by

the action of the 2nd respondent in detaining petitioner's

renewed passport dated 18.05.2017 which is valid upto

17.05.2027 filed the present writ petition seeking a direction

to the 2nd respondent to release and return the passport

forthwith. Hence, the present writ petition is filed.

4. The Regional Passport Officer, Hyderabad submitted

Written Instructions, vide No.HYD/843/28(34)POL/LC/2024,

dated 29.01.2024, in particular paragraph Nos. 4 to 7 of the

said Written Instructions reads as under:

"4. The file was processed with Post Police Verification and accordingly a new Passport bearing No.Z4193868 dated 18.05.2017 with a validity upto 17.05.2027 was issued.

5. This office received adverse PVR stating that the petitioner is involved in Cr.No. S.C.No.808/2019 filed U/s 270,308,325,352,417, 418,498-A, 506 IPC of XIV Additional City Civil & Sessions Judge at Bangalore.

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6. This Office has sent a show cause notices dated 25.05.2017 and 22.01.2020 to furnish his explanation regarding suppression of information.

7. The petitioner has submitted his explanation dated 13.07.2020 stating that the Hon'ble High Court of Karnataka has quashed the proceedings in Cr.No.119 of 2016 vide Criminal petition No.912 of 2017 dated 09.01.2018. However, his wife has filed another criminal case against the Petitioner vide Cr.No.52 of 2016 under DVC Act which is pending before the Hon'ble VI Metropolitan Magistrate Traffic Court at Bangalore."

PERUSED THE RECORD.

5. A perusal of the letter issued by the Regional

Passport office, Hyderabad vide letter Ref.

No.SCN/313966501/22, dated 23.12.2022 to the

petitioner, clearly indicates that the same has been

passed in a mechanical manner without any basis and

without application of mind because the passport of the

petitioner was renewed on 18.05.2017, and the same is

valid upto 17.05.2027 and the FIR which is lodged

against the petitioner is dated 01.03.2018 therefore,

the very plea that the petitioner had suppressed the

material information in the passport application is not

tenable and the said plea is hence, rejected.

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6. In so far as issuance of passport is concerned this

court opines that, pendency of criminal case against the

petitioner cannot be a ground to deny issuance of a

passport or deny renewal of passport or impound or

detain a passport since the right to personal liberty of

an individual would include not only the right to travel

abroad but also the right to possess a Passport.

7. This Court under similar circumstances had been

passing orders directing the respondent-Regional Passport

Authority to consider the application of the petitioner seeking

renewal of passport. The Respondent cannot refuse the

renewal of passport of the petitioner on the ground of the

pendency of the aforesaid criminal case against the petitioner

and the said action of the respondent is contrary to the

procedure laid down under the Passports Act, 1967 and also

the principle laid down by the Hon'ble Supreme Court in

Vangala Kasturi Rangacharyulu v. Central Bureau of

Investigation 1.

8. It is also relevant to note that the Apex Court in

Vangala Kasturi Rangacharyulu (supra) had an occasion to

. 2020 Crl.L.J. (SC) 572

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examine the provisions of the Passports Act, 1967, and

pendency of criminal cases and held that refusal of a passport

can be only in case where an applicant is convicted during the

period of five (05) years immediately preceding the date of

application for an offence involving moral turpitude and

sentence for imprisonment for not less than two years.

Section 6.2(f) relates to a situation where the applicant is

facing trial in a criminal Court. The petitioner therein was

convicted in a case for the offences under Sections 420 IPC

and also Section 13(2) read with Section 13(1) of the

Prevention of Corruption Act, 1988, against which, an appeal

was filed and the same was dismissed. The sentence was

reduced to a period of one (01) year. The petitioner therein

had approached the Apex Court by way of filing an appeal and

the same is pending. Therefore, considering the said facts,

the Apex Court held that Passport Authority cannot refuse

renewal of the passport on the ground of pendency of the

criminal appeal. Thus, the Apex Court directed the Passport

Authority to renew the passport of the applicant without

raising the objection relating to the pendency of the aforesaid

criminal appeal in S.C.

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9. The Apex Court in another judgment reported in

2013 (15) SCC page 570 in Sumit Mehta v State of NCT

of Delhi at para 13 observed as under:

"The law presumes an accused to be innocent till his guilt is proved. As a presumable innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution of India."

10. The Apex Court in Menaka Gandhi vs Union of India

reported in 1978 (1) SCC 248, held that no person can

be deprived of his right to go abroad unless there is a

law enabling the State to do so and such law contains

fair, reasonable and just procedure. Para 5 of the said

judgment is relevant and the same is extracted below:

"Thus, no person can be deprived of his right to, go abroad unless there is a law made by the State prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure. It was for this reason, in order to comply with the requirement of Article 21, that Parliament enacted the Passports Act, 1967 for regulating the right to go abroad. It is clear from the provisions of the Passports, Act, 1967 that is lays down the circumstances under which a passport may be issued or refused or cancelled or impounded and also prescribes a procedure for doing so, but the question is whether that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned

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Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law.

Therefore, such a right to travel abroad cannot be deprived except by just, fair and reasonable procedure.

11. The Division Bench of the Apex Court in its

judgment dated 09.04.2019 reported in 2019 SCC online

SC 2048 in Satish Chandra Verma v Union of India

(UOI) and others it is observed at para 5 as under:

"The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage, family and friendship which are the basic humanities which can be affected through refusal of freedom to go abroad and this freedom is a genuine human right."

12. Referring to the said principle and also the

principles laid down by the Apex Court in several other

judgments, considering the guidelines issued by the

Union of India from time to time, the Division Bench of

High Court of Punjab and Haryana at Chandigarh in

Noor Paul Vs. Union of India reported in 2022 SCC

online P & H 1176 held that a right to travel abroad

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cannot be deprived except by just, fair and reasonable

procedure.

13. In the judgment dated 08.04.2022 of the Andhra

Pradesh High Court reported in 2023 (4) ALT 406 (AP)

in Ganni Bhaskara Rao Vs. Union of India and another

at paras 4, 5 and 6, it is observed as under:

"This Court after hearing both the learned counsel notices that Hon'ble Supreme Court of India, in Criminal Appeal No. 1342 of 2017, was dealing with a person, who was convicted by the Court and his appeal is pending for decision in the Supreme Court. The conviction I was however stayed. In those circumstances also it was held that the passport authority cannot refuse the "renewal" of the passport.

This Court also holds that merely because a person is an accused in a case it cannot be said that he cannot "hold" or possess a passport. As per our jurisprudence every person is presumed innocent unless he is proven guilty.

Therefore, the mere fact that a criminal case is pending against the person is not a ground to conclude that he cannot possess or hold a passport. Even under Section 10 (d) of the Passports Act, the passport can be impounded only if the holder has been convicted of an offence involving "moral turpitude" to imprisonment of not less than two years. The use of the conjunction and makes it clear that both the ingredients must be present. Every conviction is not a ground to impound the

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passport. If this is the situation post- conviction, in the opinion of this Court, the pendency of a case/cases is not a ground to refuse, renewal or to demand the surrender of a passport.

The second issue here in this case is about the applicability of Section 6(2)(e) of the Passport Act. In the opinion of this Court that section applies to issuance of a fresh passport and not for renewal of a passport. It is also clear from GSR 570(E) which is the Notification relied upon by the learned counsel for the respondents and is referred to in the counter affidavit. This Notification clarifies the procedure to be followed under Section 6 (2) of the Passport Act against a person whom the criminal cases are pending. This notification permits them to approach the Court and the Court can decide the period for which the passport is to be issued. This is clear from a reading of the Notification issued. Clause

(a) (i) states if no period is prescribed by the Court the passport should be issued for one year. Clause (a) (ii) states if the order of the Court gives permission to travel abroad for less than a year but has not prescribed the validity period of the passport, then the passport should be for one year. Lastly, Clause (a) (iii) states if the order of the Court permits foreign travel for more than one year but does not specify the validity of the passport, the passport should be issued for the period of travel mentioned in the order. Such a passport can also be renewed on Court orders. Therefore, a reading of GSR 570(E) makes it very clear that to give exception or to exempt applicants from the rigour of Section 6 (2)(f) of the Act, GSR 570(E) has been brought into operation. The issuance of the passport and the period of its validity; the period of travel etc., are thus under the aegis of and control of the Court.

14. In view of the above, this Court opines that mere

pendency of criminal case is not a ground to detain the

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passport which was issued to the petitioner. Further, the

petitioner is ready to co-operate with the trial Court in

concluding trial. Therefore, the petitioner herein sought

release of passport by issuing necessary directions to

respondent for consideration of the present application filed

by the petitioner for release of passport which was

surrendered by the petitioner on 08.05.2023 to the 2nd

respondent herein.

15. In view of the above, this Court opines that mere

pendency of criminal case is not a ground to decline release of

passport to the petitioner which was already issued and which

is valid till 17.05.2027. Further, the petitioner is ready to co-

operate with the trial Court in concluding trial. Thus, on the

ground of pendency of the above criminal case, passport

cannot be detained by the respondent.

16. Taking into consideration the above facts and

circumstances of the case and in particular paragraph

Nos.4 to 7 of the Written instructions filed by the

respondent passport authority and also the view taken

by the High Courts and Supreme Court in all the

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Judgments referred to and extracted above, the Writ

petition is allowed setting aside the impugned

Proceedings dated 23.12.2022 issued by the 2nd

respondent directing the petitioner to submit the

passport to the passport office with immediate effect

and the respondent is directed to release the pass port

bearing No.Z4193868, dated 18.05.2017 of the

petitioner which had been surrendered by the

petitioner to the passport Authority on 08.05.2023

within one week from the date of receipt of the copy of

the order duly re-considering the explanation dated

20.01.2023 furnished by the petitioner in response to

the show cause notice dated 23.12.2012 issued to the

petitioner duly considering the law laid down by the

Apex Court in the various judgments (referred to and

extracted above), subject to the following conditions:

i) The petitioner herein shall submit an undertaking along with an affidavit in S.C. No.808 of 2019, pending on the file of XIV City Civil and Sessions Judge at Bangalore, stating that he will not leave India during pendency of the said S.C. without permission of the Court and that he will co-

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operate with trial Court in concluding the proceedings in the said C.C.;

ii) On filing such an undertaking as well as affidavit, the trial Court shall issue a certified copy of the same within two (02) weeks therefrom;

iii) The petitioner herein shall submit certified copy of aforesaid undertaking before the Respondent- Passport Officer for issuance of his passport;

iv) The Respondent-Passport Officer shall consider the said application in the light of the observations made by this Court herein as well as the contents of the undertaking given by the petitioners for issuance of passport in accordance with law, within two (03) weeks from the date of said application;

v) On issuance of the Passport, the petitioner herein shall deposit the original Passport before the trial Court in S.C. No. 808 of 2019; and

vi) However, liberty is granted to the petitioner herein to file an application before the trial Court seeking permission to travel abroad and it is for the trial Court to consider the same in accordance with law.

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As a sequel, miscellaneous petitions, if any, pending in

the writ petition shall also stand closed. However, in the

circumstances of the case, there shall be no order as to costs.

__________________________ MRS JUSTICE SUREPALLI NANDA

19th February, 2024 ksl